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Acts or omissions prior to the existence of the common purpose

1177. The jurisprudence of the Tribunal has held that, in order for an accused to be held responsible for a crime committed pursuant to JCE liability, it must be established that he or she performed “acts that in some way [were] directed to the furthering of the common plan or purpose” of the JCE.[1] In this regard, the Appeals Chamber recalls its conclusion that the Trial Chamber’s finding that a common purpose existed beyond reasonable doubt “during the time of the crimes alleged in the Indictment”[2] concerned the period starting from 24 March 1999.[3] The Appeals Chamber further notes that, based on the Trial Chamber’s findings, both the arming of the non-Albanian population and the disarming of the Kosovo Albanian population were carried out earlier than 24 March 1999.[4] Moreover, the Trial Chamber’s finding on Pavković’s involvement in the process of arming and disarming was based on evidence concerning his conduct in 1998.[5] In these circumstances, it was unreasonable for the Trial Chamber to find that Pavković “acted […] to further the common purpose” through his enthusiastic involvement in, and support for, the process of arming and disarming and thereby finding that he contributed to the common purpose of the JCE prior to its existence.[6]

[5] Trial Judgement, vol. 3, paras 667-668. It follows that, contrary to the Prosecution’s contention (Appeal Hearing, 11 Mar 2013, AT. 247), Pavković’s engagement in the process of arming and disarming, as such, cannot be considered as “bringing in” or “making use of” the results of the arming and disarming during the time when the common purpose was in existence.

[6] Trial Judgement, vol. 3, paras 779, 782. In this regard, the jurisprudence of the Tribunal, referred to by the Prosecution, indicates that certain conduct of a JCE member which started prior to, and continued during, the period when a common purpose of a JCE was found to have existed could constitute an act in furtherance of the common purpose by virtue of the continuation of this conduct while the common purpose was in existence (see Krajišnik Appeal Judgement, paras 162, 209-218; Martić Appeal Judgement, para. 117; Martić Trial Judgement, paras 445, 448). This was not the case with respect to Pavković’s engagement in the process of arming and disarming.